By CAPT Leigh LeducAugust 2, 2018
Fort Knox Staff Judge Advocate
In the Fort Knox Legal Assistance Office, one of the most frequently discussed topics is divorce.
Whether your interest lies in getting counseling to avoid divorce, or in filing for a divorce yourself, knowing what rights you may have is a critical issue for many Soldiers, spouses and retirees. By understanding the many issues involved in this decision, you can take steps to protect your future.
First, marriage should not be taken lightly.
This is a huge, significant life event, which legally binds you to your spouse, creating rights and responsibilities. Although the lure of BAH and BAS may be tempting to junior Soldiers, marriage is a legal commitment. Fraudulently entering into a sham marriage to get these benefits can result in charges of larceny and false official statements under the Uniformed Code of Military Justice.
Sham marriages could also lead to allegations of adultery if the Soldier is seeing someone other than their "spouse," which could result in other UCMJ charges.
Regardless of whether you are currently serving or retired, marriage affects legal property rights.
Although the definition of marital property differs from state to state, marital property is typically defined as everything obtained during the marriage, with the exception of gifts and inheritance. This is why military retired pay is treated as a marital asset.
Things purchased with one spouse's salary still are considered marital property. Things purchased with inheritance money can be considered separate property, but interest accrued from that asset could also be considered marital.
In community-property states, such as Texas and Arizona, marital property belongs to both spouses.
Although separate-property states, such as Kentucky, do not consider marital property to "belong" to both, equitable distribution during divorce can often have the same effect by splitting the property 50/50.
Kentucky law uses a formula for equitable distribution called the Brandenburg Formula, which considers the spouse's contribution to the value of assets compared to the total marital contribution and the equity in the asset. Under Kentucky law, courts can consider the value of a stay-at-home spouse's work in the home for equitable distribution. Other factors a Kentucky court can consider besides the spouse's contribution to the assets include the length of the marriage and the economic circumstances of the parties.
Another common issue during divorce is cars.
Although property may be divided up under a court order or agreement, it is important to note that lenders may pursue one spouse for a debt on a car that was given to the other in the divorce. For instance, if Joe financed his wife's car, Joe still has a contract with that lender even if Sally gets the car in the divorce. Joe needs to work with the lender to try to get the loan transferred into Sally's name. It would be a good idea if Sally wants a car during the marriage to have her sign the loan herself, and if she cannot afford it or is not approved, to use a different dealer or finance company, or to wait until she can afford it.
Another concern before a divorce has been adjudicated is the military rules regarding spousal support, found in AR 608-99, AFI 36-2906, MCO P5800.16A, COMDTINST M1000.6A, and MILPERSMAN 1754-030. The details vary, but essentially, in the absence of a court order or agreement, a service member must support the spouse. The exceptions are very limited. Divorce ends that obligation.
Another concern for service members is retirement pay and the Survivor Benefits Plan.
A spouse can request in the divorce decree to remain a beneficiary under the SBP. If granted, the service member will have to continue to pay those premiums so the former spouse will continue to be supported in the event the service member dies.
Retirement pay also can be divided in a divorce with the details, again, depending on the state.
For instance, in Indiana, for retirement pay to be split the pension must be vested, meaning the service member would be eligible to retire as of the date of the divorce. For Kentucky, any length of time served entitles a spouse to pursue this, but the amount the spouse is entitled to will be very small unless they have been married for a significant portion of the qualifying service. It is important to note that the retirement pay is considered marital property and thus, splitting the retirement pay is not alimony for tax purposes.
Another common concern is ID card, commissary and TRICARE privileges. A spouse who has been married for 20 years of the other's 20-year minimum military service, with 20 years of overlap (20/20/20) will remain fully eligible for all these benefits. A 20/20/15 spouse can remain on TRICARE for a year after the divorce, but will not get the other benefits in most cases.
In addition to property settlement, divorce decrees can address issues of child custody.
The term "custody" can refer to legal
custody -- the right to make decisions for the child -- and/or physical custody, which refers to where the child resides. Parents' rights in the United States are strongly protected. Even if one parent
has sole custody, the other should have the right to reasonable
visitation in all but the most extreme circumstances.
Finally, the most critical concern is jurisdiction.
To file for divorce in Kentucky, one spouse must reside there for 180 days; being stationed at Fort Knox is sufficient. The petition must be filed in the county where one or both spouses reside. In addition, there is a 60-day "separation" requirement if there are children. Requirements for jurisdiction depend on the state.
For more information about divorce, make an appointment to speak to an attorney at the Fort Knox Legal Assistance Office, located in Bldg. 1310 at 50 3rd Ave.
Free-use photo courtesy of Cordell and Cordell
One of the most frequently discussed topics in the Fort Knox Legal Assistance Office is divorce. Legal officials warn Soldiers, spouses and retirees that marriage involves several legal hurdles when dissolved.